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' The Patent ^ystem 



OF THE UNITED STATES 



A HISTORY. 



♦ ♦ ♦ ♦ ♦ 




LEVIN H. CAMPBELL, 

WASHINGTON, D. C. 



-r r i-,.V :.';■';- ~.^ •^t'^l'V- Vr^V V^J^i^ 



THE PATENT SYSTEM 



OF THE UNITED STATES 



so FAR AS IT RELATES TO 



THE GRANTING OF PATENTS: 

A HISTORY. 



By levin H.CAMPBELL, /v> cOP^RiGht ^\, ^ 

Assistant Examiner in the United States Patent Offlci. '' ' ■ t^ lu" ' 



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" The invention all admired, and each how he 
To be the inventor missed ; so easy it seemed, 

Once found, which yet unfound, most would have thought impossible." 

— Milton. 



ILLUSTRATED, 



washington, d. c: 
Press of McOill & Wallace. 



1891. 






Entered according to Act of Congress, in the year 1891, by 

LEVIN H. CAMPBELL, 

In the Ofl&ce of the Librarian of Congress, at Washington, D. C. 



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INTRODUCTORY. 



It is the object of this little book to give a history of the United States 
Patent System so far as it relates to the issuing of patents. Several frag- 
mentary accounts of the United States Patent Office have been written ; 
but so far as can be learned, no extended and connected history of the 
origin and development of that part of the patent system relating to the 
granting of patents has ever been vrritten. 

The greater portion of the matter contained in chapters II, III, IV, and 
V has never appeared in popular print, and was only obtained after a 
long and of necessity frequently interrupted search extending over a year 
or more and covering both papers and books published by authority of 
Congress and private publications contemporaneous with the periods 
embraced in these chapters. 

The chapter on the early English system is designed to open the way to 
a proper understanding of the beginning of the American system, and of 
many of its principles. 

It will be observed that many of the legislative enactments were simply 
to put into statute law practices which had been introduced by the Patent 
Office. 



liinited @)tates p atent (System. 

CHAPTER I. 

The Early English Patent System. 

The idea and practice of granting letters patent for 
inventions had their origin in England, and they have 
since been adopted and copied, more or less closely, by 
every civilized power. Singular as it may appear, the 
idea, if not the practice itself, had its foundation in the 
practice of granting monopolies by the Crown. The pre- 
rogative to make these grants was vested in the sov- 
ereign, as the sole depositary of the supreme executive 
power of the State, to be exercised in the behalf and for 
the benefit of the public. In these grants the persons 
named therein were allowed the sole buying, making, 
and selling of certain things in common use specified 
therein, and the public restrained of this freedom and 
hindered in their lawful trade. It is impossible to ascer- 
tain with certainty when such grants were enlarged to 
include the sole use of inventions. It is, however, quite 
clear that the prerogative of the Crown to make such 
grants is not a statutory one, but was derived from the 
custom of granting monopolies, and was acknowledged 
at Common Law. In a case decided in the reign of Ed- 



6 UNITED STATES PATENT SYSTEM. 

ward III. it is reported, ^^ That arts and sciences which 
are for the public good are greatly favored in law, and the 
King, as chief guardian of the common weal, has power 
and authority by his prerogative to grant many privi- 
leges for the sake of the public good, although prima facie 
they appear to be clearly against common right.'' But 
the most remarkable and leading case is that of Darcy v. 
Allien, tried in the 44th year of the reign of Elizabeth 
(1602), for the sole making of playing cards within the 
realm and for the sole importation of foreign cards. The 
patent was set aside on the ground that card making 
w^as not new, but that it was a known trade. In several 
subsequent cases, in which the patents were adjudged to 
be valid, the questions involved were, said the courts, 
whether the inventions were newly invented by the pat- 
entee or were used before, in which latter event the courts 
were of opinion that the patents were void. It appears 
from these decisions that at common law novelty of the 
subject-matter was necessary to sustain a patent, and in 
this respect it differed essentially and radically from the 
grant of a monopoly in trade, which was illegal and void. 
But notwithstanding the fact that this clear distinction 
was made by the courts, it was ignored by the Crown, 
which continued to grant monopolies at its royal pleas- 
ure. To put a stop to this abuse of the kingly preroga- 
tive, the Statute of Monopolies was passed in the reign 
of James I., A. D. 1623. It declared void all monopolies 
granted and which should be granted, and defined the 
prerogative to be to grant letters patent only for " The 
sole working or making of any manner of new manu- 



THE EARLY ENGLISH PATENT SYSTEM. 7 

factures within the realm to the true and first inventor.'' 
The statute was early construed by the courts to include 
introducers also, of new inventions from abroad. It cre- 
ated no rights which had not existed and been recog- 
nized before its passage. The statute simply declared 
and determined, without any probability of future misap- 
prehension or abuse, what the King's prerogative in the 
matter was. It contains no clause by which the subject 
could demand a patent as a right The Crown, as the 
Patron of Arts and Sciences, still caused a patent to be 
issued as a royal favor on the prayer of its subject. No 
examination as to the patentability of the invention was 
made, and the only remedy the patentee and the public 
had against illegal patents was by suit at law in the 
name of the sovereign. A few years after the passage of 
the statute a proclamation was issued abolishing "all 
patents for new inventions not put in practice from the 
date of their respective grants." This edict, long since 
obsolete, is given as being of interest only when taken in 
connection with a provision of like purport in the grants 
of patents by the American Colonies and States and in 
the patent laws to-day of several foreign countries. 

The object aimed at in the granting of patents was to 
secure a reward to the inventor, and at the same time ob- 
tain the invention for the free use of the public after the 
patent had expired. To carry out the latter part of this 
design, the early patents contained a clause requiring 
the inventor "To take apprentices and teach them the 
knowledge and mystery of the said new inventions," a 
practice which, as Lord Coke suggests, led to the adoption 



b UNITED STATES PATENT SYSTEM. 

of fourteen years as the term of a patent, ^^that others 
might by seven years apprenticeship and seven years 
practice acquire the invention." But it was found that 
the public could not rely on this method for a full and 
complete understanding and acquisition of the inven- 
tions, because the patentee might not perform his part of 
the agreement. So, in the reign of Queen Anne, the law 
officers of the Crown introduced another and different 
clause, requiring a written description of the invention, 
under the hand and seal of the patentee, to be filed in the 
Court of Chancery, from whence all patents were issued. 
This description was termed the Specification. 

Prior to this time the only description of record of the 
invention secured by a patent consisted of a few words 
giving merely the name of it. The first patent in which 
a specification was required appears to be that to one 
John Nasmyth, 1st April, 1712. 

It is not certain at what period drawings began to be 
annexed to the specification. They w^ere not absolutely 
necessary, but were early and very generally adopted as 
an easy way of illustrating the device and of aiding the 
description. In an act of 1719, George II., confirming a 
patent to one Lombe, is a proviso, " that His Majesty may 
appoint twelve persons to take a perfect and exact model 
of said three engines to secure and perpetuate the art of 
making like engines for the Advantage of the Kingdom.'' 
The patent system attracted very little notice until near 
the end of the eighteenth century; from 1680 to 1780 
only some eight hundred patents had been granted. But 
at this time England was just beginning her wonderful 



THE EARLY ENGLISH PATENT SYSTEM. 9 

commercial and industrial career, and Arkwright, Har- 
greaves, Crompton, and Watt had patented their inven- 
tions. Their patents became immensely valuable and 
were the subjects of fierce and prolonged contests in the 
courts, which ended in a series of adjudications, begin- 
ning with Arkwright's case, and in the course of which 
many of the fundamental principles of patent law and 
practice were discussed, elucidated, and settled. The 
cases are to-day looked to for aid and cited as leading 
authorities on the points decided in them. And all this 
was before the enactment of a patent law by Congress. 



CHAPTER II. 

Colonial and State Patents for Inventions. 

In October, 1634, the General Court of Massachusetts 
Bay Colony initiated the practice in America of granting 
patents by an act securing to one Samuel Winslow an ex- 
clusive privilege for a method of manufacturing salt, and 
prohibiting all other persons from making this article for 
ten years, except in a manner different from his, provided 
he set up works within one year from the date of the 
grant. This act is memorable, because it is the first 
grant of an exclusive privilege in inventions passed in 
America, and the privilege was the first to be given un- 
der and by virtue of the sovereign will of the people and 
not at the royal pleasure of a king. The proviso is evi- 
dently borrowed from the English proclamation which 
declared void all patents for inventions not worked in 
the kingdom within one year after the date of their issue. 
In 1652 the Colony allowed one John Clark ten shillings 
for three years from every family which should use his 
invention for saving wood and warming houses at little 
cost. In 1655 a patent was granted to Joseph Jencks, 
sen., for an " engine for the more speedy cutting of grass." 
From time to time thereafter other grants were made 
and premiums offered to encourage domestic industries. 
Connecticut, of all the colonies, though not founded un- 
til a quarter of a century after the landing of the first 
English colonists at Jamestown, appears to have been the 
most far-sighted and liberal in the number of its grants 



COLONIAL AND STATE PATENTS. 11 

for the promotion of the useful arts. Beginning with an 
act in 1663 for the encouragement of mining, many acts 
were passed in the course of time covering nearly all of 
the industries practiced in the colony. In its statutes of 
1672 is printed " that there shall be no monopolies 
granted or allowed but of such new inventions as shall be 
deemed profitable for the country, and for such time as 
the general court shall judge meet." In the provincial 
records of Pennsylvania is found an entry, allowing one 
Thomas Masters to record and publish in the province 
two patents which had been granted to him in England 
for that Kingdom and " the several plantations in Amer- 
ica." 

No grants of patents appear to have been made by any 
of the others of the original thirteen Colonies. There was, 
however, an application made to the Governor of New 
York in 1693, "for aid to perfect an invention to increase 
the speed of vessels;" but no record of the disposition 
made of it is found. 

On July 4, 1776, the delegates from the original thir- 
teen Colonies in Congress assembled declared the sepa- 
ration of the Colonies from England, and the assumption 
by each of them of sovereign powers as " free and inde- 
pendent States." Eight days later "Articles of Confeder- 
ation" were agreed upon; and under them the Federal 
Government of the States continued until March 4, 1789. 
There was no clause in the "Articles " giving to Congress 
the power to grant patents, and in the meantime the in- 
dividual States granted patents just as their predecessors, 
the Colonies, liad done. 



12 UNITED STATES PATENT SYSTEM. 

Maryland granted to James Rumsey ^^the exclusive 
privilege and benefit of making and selling new invented 
boats ;" to Oliver Evans the right of making and selling 
" two machines for the use of merchant mills/^ and " one 
other machine denominated a steam carriage." In these 
grants, were included penalties for infringements to be 
recovered with costs, provided the grantee " shall not be 
proven not to be the original inventor." 

New York granted John Fitch the sole right of mak- 
ing and employing, for a limited time, the steamboat by 
him lately invented. He and Evans also obtained 
grants for their inventions in nearly all of the other 
States. 

A detailed enumeration of the grants of patents by 
the Colonies and States has not been attempted. From 
those given a correct idea, although it be a general one, 
may be obtained of how the polic)^ of allowing patent 
privileges was regarded during this period, and of the 
facility of obtaining them. They were based on peti- 
tions to the Assemblies of the Colonies or States, as the 
case might be. The petition contained the title and a 
brief description of the invention, and was accompanied 
by a model or drawing, and it was referred to a com- 
mittee appointed for the purpose. The committee con- 
ferred with the inventor, examined his invention, and 
reported favorably or adversely, and a patent was 
granted for such term of years as the comparative im- 
portance of the invention merited. 



CHAPTER HI. 



Of the Power in the Constitution to Grant Patents. 

In May, 1787, the Federal Convention began its work 
of drafting a Constitution for the United States, and by 
July the Constitution had been practically agreed upon. 
On July 26 all the proceedings of the Convention up to 
that time were referred to a Committee of Detail to pre- 
pare and report the Constitution. On 
August 6 the report was delivered ; but 
it contained no power to Congress to 
grant patents. On August 18, nearly 
three months after the Convention had 
been in session, and within a month of 
its adjournment, Mr. James Madison, of 
Virginia, arose in his place, and ^^ sub- 
!\ mitted, in order to be referred to the 
Committee of Detail, certain powers, as proper to be 
added to those of the General Legislature." Among 
these powers were two — one, "to secure to literary au- 
thors their copyright for a limited time," and the other, 
"to encourage, by premiums and provisions, the ad- 
vancement of useful knowledge and discoveries." 

On the same day, Mr. Charles Pinckney, of South Car- 
olina, also submitted a number of propositions, among 
which were two — one, " to grant patents for useful in- 
ventions," and the other, " to secure to authors exclu- 
sive rights for a certain time." 

The propositions of both these gentlemen were referred 
to the Committee. 




14 UNITED STATES PATENT SYSTEM. 

On August 31 such parts of the Constitution as had 
not been acted upon were referred to a committee com- 
posed of one member from each State ; and among these 
undisposed of parts were the propositions to give to Con- 
gress the power to grant patents for inventions. Mr. 
Madison,' but not Mr. Pinckney, was of this committee. 
On September 5 the committee reported and recom- 
mended, among other things, that Congress have the 
power " to promote the progress of science and useful 
arts, by securing for limited times to authors and inven- 
tors the exclusive right to their respective writings and 
discoveries." This was agreed to without a dissenting 
vote, and in the final revision of the style and arrange- 
ment of the articles in the Constitution became para- 
graph 8, section 8, of article I. 

It is seen that the distinction of submitting the pro- 
posals to give this power to Congress rests jointly with 
Mr. Madison and Mr. Charles Pinckney. Both were 
young men, the former being thirty-six and the latter 
twenty-nine. They were prominent in the proceedings 
of the Convention, and were men of marked ability. 
Neither of them appears, however, to have had any 
special knowledge or concern in science or the useful arts. 
They doubtless were prompted to submit their respective 
proposals because of the precedent set for such a policy 
by England, the Colonies, and the States. The only nov- 
elty involved in the propositions was giving the powder to 
Congress, and this was easily justified, because the mem- 
bers of the Convention knew of the insufficient benefits 
to the public at large and of the inadequate, capricious, 



POWER IN THK CONSTITUTION TO GRANT PATENTS. 15 

and conflicting security afforded a patentee by grants 
from the separate States. 

Mr. Madison, in a paper in the " Federalist/' wrote of 
this power as follows: "The utility of this power will 
scarcely be questioned. The copyright of authors has 
been solemnly adjudged in Great Britain to be a right at 
common law. The right to useful inventions seems with 
equal reason to belong to the inventors. The public 
good fully coincides in both cases with the claims of in- 
dividuals. The States cannot separately make effectual 
provision for either of the cases, and most of them have 
anticipated the decision of this point by laws passed at 
the instance of Congress." 

The power is limited to granting patents to authors 
and inventors, and does not include introducers who are 
not the authors and inventors. 

Some few years after the adoption of the Constitution 
the question. Has a State the right, under the Constitu- 
tion, to grant patents? arose in the trial of a case in New 
York. The court decided that a State has the right. The 
case was appealed to the Supreme Court of the United 
States; but it was there determined on a difl'erent point 
and the question left open. Whatever may be the correct 
answer, the States have ceased to grant patents. 



CHAPTER IV. 
The First Patent Legislation. 

The first session of the First Congress, under the Con- 
stitution, began March 4, 1789, but no legislative business 
was done until April 1st. Fourteen days later, David 
Ramsey and John Churchman each filed a petition in the 
House of Representatives, praying that a law might pass 
for securing to him an exclusive right for his writings. 
These petitions were referred to a committee specially 
appointed for the purpose. This was the very first step 
taken in patent legislation in this country U7ider the Con- 
stitution. This committee reported favorably, but on 
motion the House ordered that a committee be appointed 
to bring in a bill, making a general provision for secur- 
ing to authors and inventors the exclusive right to their 
respective discoveries. Accordingly, on June 23d, a bill 
for such a purpose was reported, but through want of time 
for its consideration, the measure failed to become a law. 
These proceedings are given because in them is first found 
the idea of a general law instead of a special act, passed 
in each individual case, to secure patent rights. 

In this session there were eighteen petitions filed for 
exclusive privileges as authors or inventors. 

The Law of 1790. 

The second session began January 4, 1790. A com- 
mittee was appointed to examine the Journal of the last 
session, to report therefrom all such business as was then 



THE LAW OF 1790. 17 

depending and undetermined. Before this committee 
made its report, President Washington addressed Con- 
gress. In the course of this address he said, "I cannot 
forbear intimating to you the expediency of giving 
effectual encouragement as well to the introduction of 
new and useful inventions from abroad as to the exer- 
tions of skill and genius in producing them at home." 
Three days later the committee reported that "it appears 
that there was postponed for further consideration until 
this session ^A bill to promote the progress of science 
and the useful arts.' " On January 25th a committee was 
appointed " to prepare and bring in a bill making a 
general provision for securing to authors and inventors 
the exclusive right to their respective writings and dis- 
coveries; and that Edanus Burke of South Carolina, 
Benjamin Huntington of Connecticut, and Lambert Cad- 
wallader of New Jersey, do prepare and bring in the 
same." On February 16th Mr. Burke presented a bill, 
which, after having been amended both in the House 
and Senate, was passed, and signed by the President, 
April 10th. Whether this act, as first reported, or as 
passed, was the same as the bill reported in the first ses- 
sion will never be known for all the records were burned 
by the British in 1814. 

The Act provided that upon the petition of any person 
to the Secretary of State, the Secretary of War, and the 
Attorney-General, setting forth that he had invented any 
useful art, manufacture, engine, machine, or device, or 
any improvement therein not before known or used, 
these three officials, or any two of them, if they deemed 



18 UNITED STATES PATENT SYSTEM. 

the invention sufficiently useful and important, might 
cause a patent to be made out in the name of the United 
States, to bear teste by the President, reciting the allega- 
tions of the petition, and describing the invention, and 
thereupon granting to the petitioner, his heirs, adminis- 
trators and assigns, for any term not exceeding fourteen 
years, the sole and exclusive right and liberty of making, 
constructing, using, and vending to others to be used, 
the invention ; that the patent should be delivered to the 
Attorney-General to be examined, who, if he should find 
it conformable to the law, should certify it to be so at the 
foot thereof, and present the patent so certified to the 
President, who should cause the seal of the United States 
to be thereto affixed ; that the patent should be recorded 
in a book to be kept for that purpose in the office of the 
Secretary of State, and that the delivery of the patent 
should be entered on the record, and endorsed on the 
patent by the Secretary at the time of granting it. It 
further provided that the patentee should, at the time 
the patent was granted, deliver to the Secretar}^ of State 
a written description, accompanied with drafts or model 
of the thing patented, and which description should be so 
particular, and the models so exact, as not only to distin- 
guish the invention from other things before known or 
used, but also to enable a person skilled in the art to 
make and use it, and which description should be filed in 
the office of the Secretar}^ And it further enacted that 
upon the application of any person to the Secretary of 
State for a copy of such description, and for permission 
to have a similar model made, it should be the duty of the 



THE LAW OF 1790. 19 

Secretary to give such copy, and to permit the person to 
make a similar model, at the person's own expense. 

The description and drawing were not annexed to the 
patent, and it contained no recital that they formed a 
part of it. There was no appeal from a refusal to cause 
a patent to be made out. The practice seems to have 
been for the petitioner to accompany his petition with a 
description and model of the invention, and the papers 
were examined by the three officials, and if found 
defective in any respect the petitioner was required to 
amend them. It is a matter of tradition that when a 
petition was presented, Mr. Jefferson, who was Secretary 
of State, would send for Mr. Knox, Secretary of War, 
and Mr. Randolph, Attorney-General, and that the three 
distinguished officials would inquire with grave deliber- 
ation and interest into the utility and importance of the 
invention. In a letter written by Mr. Jefferson he 
stated that the '• patent board '' early established several 
rules and that among them were: 1st, that a patent 
would not be granted for a machine in a double use ; 2d, 
nor for a simple change of material ; 3d, nor of form. 
The office fees were paid to the clerk employed in the 
State Department who made out the patent, and 
amounted to three dollars and seventy cents, to which 
were added ten cents for every hundred words for filing 
the specification. The work of issuing the patent was 
performed by the Chief Clerk of the Department, and 
the fees therefrom were a part of his salary. Henry 
Remsen, Jr., was the first clerk to receive these fees, he 
having been appointed Chief Clerk on July 25, 1790, 



\ 



20 UNITED STATES PATENT SYSTEM. 

and the first patent having been issued on the 31st of 
July in the same year. He was succeeded on April 1, 
1792, by George Taylor, Jr., and he in turn on Febru- 
ary 18, 1798, by Jacob Wagner. Taylor had the fees 
for a short time only, and Wagner not at all, for the 
law was repealed in 1793. Under the law of 1790, there 
was no ^^ Patent Office,'' and not even a "Division of 
Patents," in the Department. The first patent issued 
was to Samuel Hopkins, July 31, 1790, for " Making 
Pot and Pearl Ashes.'' It was signed by George Wash- 
ington, President; Thomas Jeff'erson, Secretary of State; 
and Edmund Randolph, Attorney-General. In 1884 
the Secretary of the Interior recommended that Con- 
gress buy this ancient document ; but without effect. It 
ought to have been purchased because it is of historical 
interest as being the first in the longest list in the world 
of patents for inventions. There w^ere three patents 
issued in 1790, and the whole number issued under the 
act was fifty-five. 



CHAPTER V. 
The Law of 1793. 

A number of inventors and others interested in the 
granting of patents were dissatisfied with the act of 1790. 
At the very next session (there were three sessions) of this 
Congress, on December 9, 1790, a committee was appointed 
to bring in a bill to amend the act. Accordingly a bill 
was reported, but consideration of it was postponed from 
day to day until the session closed. The opponents of 
the act were determined however, and at the first session 
of the next Congress, in 1791, a petition of James Rumsey 
was read, praying that the act of 1790 '' be amended 
and rendered more efi'ectual for securing to original in- 
ventors property in their respective discoveries." At 
this same session a petition of another inventor was pre- 
sented, praying that a reasonable time might be granted 
him " to finish the exhibit of a machine which he is now 
constructing for cleansing and whitening rice." This 
petition seems to have contained the first idea of the 
Caveat in the American system. 

In accordance with Rumsey's petition a committee 
was appointed to bring in a bill, and accordingly did so, 
but the session expired and left the measure unacted on. 
The second session of this Congress began November 5, 
1792, and Rumsey immediately renewed his petition. A 
committee was appointed, and they reported a bill. Its 
first section provided that the petition for a patent should 
be addressed to the " Director of the Mint." A motion 



22 UNITED STATES PATENT SYSTEM. 

was made that a clause providing for the appointment 
of an officer to be denominated the " Director of Patents'' 
be substituted for the words " Director of the Mint." It 
was lost through the fear of the members that the clause 
would necessitate another office and salary. It was then 
moved that the Federal judges of the District Courts be 
substituted for " Director of the Mint." This motion 
was sought to be supported on the ground of affording 
greater facilities to inventors, who would then not have 
to go or send their applications to Washington city, but 
could file them with the judge in whose district the ap- 
plicant might reside or be. Finally it was agreed to 
substitute " Secretary of State," because, as one member 
said, the Secretary under the bill had no authority to 
examine the merits of the inventions, and no harm in 
this respect could be done. It is an interesting fact that 
thus early in patent legislation the appointment of a 
" Director [Commissioner] of Patents" was proposed, and 
that the act of 1790 — distinctively American — was not 
repealed without a long and persistent effort. The bill 
became a law February 21, 1793. It was as plainly 
English in its principles and practice as its predecessor 
was distinctly American. In the debate on the bill it 
was said " it was an imitation of the patent system of 
Great Britain ; that the provisions were such as would 
circumscribe the duties of the deciding officer within very 
narrow limits." 

Mr. Jefferson said of the act, " Instead of refusing a 
patent in the first instance, as the board was formerly 
authorized to do, the patent now issues of course, subject 



THE LAW OF 1793. 23 

to be declared void on such principles as should be estab- 
lished by the courts of law. This business, however, is 
little analogous to their course of reading; and a previous 
refusal of a patent would better guard our citizens against 
harassment by law suits. But England had given it to 
her judges, and the usual predominancy of her example 
carried it to ours." The act provided that when any per- 
son, being a citizen of the United States, should allege that 
he has " invented any new and useful art, machine, man- 
ufacture, or composition of matter, or anj^ new and useful 
improvement'' thereof, not known or used before the appli- 
cation, and should present a petition to the Secretary of 
State, praying that a patent may be granted therefor, it 
should be lawful for the Secretary to cause a patent to be 
made out in the name of the United States, bearing teste 
by the President, reciting the allegations of the petition, 
and giving a short history of the invention, and thereupon 
granting to the petitioner, his heirs, administrators, or 
assigns, for a term not exceeding fourteen years, the ex- 
clusive right of making, constructing, using, and vending 
to others to be used, the invention, which patent should be 
delivered to the Attorney-General to be examined ; who, 
if he finds the patent conformable to the law, should certify 
accordingly, at the foot thereof, and return the same to the 
Secretary, who should present the patent to the President 
to sign, and should cause the seal of the United States to 
be affixed thereto, and that the patent should be recorded 
in a book in the office of the Secretary. It further pro- 
vided that the patentee of an improvement should not be 
at liberty to make, use, or vend the original invention, nor 



24 UNITED STATES PATENT SYSTEM. 

should the first inventor be at liberty to use the improve- 
ment ; and that simply changing the form or the propor- 
tion of a machine, or composition of matter, in any degree, 
should not be deemed an invention. It further enacted that 
every inventor, before he could receive a patent, should 
swear that he does verily believe that he is the true in- 
ventor of the art or thing for which he solicits a patent, 
and should deliver a description of his invention, and of 
the manner of using or process of compounding the same, 
in such full, clear, and exact terms, as to distinguish the 
same from all other things before known, and to enable 
.any person skilled in the art of which it is a branch, or 
with which it is most nearly connected, to make, com- 
pound, and use the invention. And in the case of a 
machine, he should fully explain the principle, and the 
several modes in which he has contemplated the applica- 
tion of the principle ; and he should accompany the whole 
with drawings and written references, where the nature 
of the case admits of drawings, or specimens of ingre- 
dients and of the composition ; which description, signed 
by himself and attested by two witnesses, should be filed 
in the office of the Secretary of State; and that the in- 
ventor should deliver a model of his invention, should 
the Secretary deem a model necessary. It also provided 
that it should be lawful for an inventor, his executor or 
administrator, to assign the title and interest in the inven- 
tion, at any time, and the assignee, having recorded the 
assignment in the office of the Secretary of State, should 
thereafter stand in the place of the inventor, and so the 
assignees of the assigns, to any degree. It also made pro- 



THE LAW OF 1793. 25 

vision for the disposal of interfering applications, by en- 
acting that they should be submitted to three arbitrators^ 
one chosen by each person and one by the Secretary of 
State, and that their award should be final, as far as re- 
spects the granting of the patent ; and if either of the ap- 
plicants should refuse or fail to choose an arbitrator, 
the patent should issue to the opposite party. And where 
there should be more than two interfering applications, 
and the parties thereto should not all unite in selecting 
three arbitrators, the Secretary of State should appoint the 
arbitrators. It further enacted that every inventor, be- 
fore presenting his petition, should pay into the treasury 
of the United States thirty dollars, for which he should 
take duplicate receipts ; one of which receipts he should 
deliver to the Secretary of State when presenting the 
petition, and the money should be in full for all the serv- 
ices performed in issuing the patent, and should pass to 
the account of clerk-hire in the office of the Secretary ; 
provided, nevertheless, that for every copy of any paper 
respecting any patent the person obtaining the copy 
should pay, at the rate of twenty cents for every copy- 
sheet of one hundred words, and for every copy of a 
drawing two dollars, of which payments an account 
should be rendered annually to the Treasurer, and they 
should also pass to the account of clerk-hire in the office 
of the Secretary of State. Though this act, like that of 
1790, required a petition to be presented, and the patent 
to recite the " allegations of the petition,'' it seems that 
the petition alone seldom contained anything beyond 
the mere title of the invention, indicating its object and 



26 UNITED STATES PATENT SYSTEM. 

nature. But the description being filed at the same 
time and often on the same paper, seems to have been 
regarded as a part of the petition; and to comply with 
the law, by inserting in the patent the '^ allegations in 
the petition," and a "short description of the invention," 
and avoid mistakes as to the extent of the inventor's 
claim, the officers annexed to the patent the whole de- 
scription of the invention, usually in the applicant's own 
writing, and by express reference in the patent referred 
to it as forming a part of the patent. Every application 
for a patent consisted of the petition, the description, the 
oath, and the drawing. The petition was addressed to 
the Secretary of State, and gave the name, citizenship, 
and residence of the petitioner and title of the inven- 
tion, and was signed by the petitioner. The specification 
contained a description of the invention, and in some 
instances a claim of what the inventor regarded as his 
own invention. As early as 1807, a few patentees closed 
the descriptions by a summary of the alleged benefits 
and advantages of their inventions, and from 1812 it 
became not infrequent to close the description by a sepa- 
rate paragraph pointing out the part or parts which the 
applicant believed to be his invention. In a circuhir of 
information respecting the manner of taking out patents, 
etc., distributed by the Patent Office in 1828, applicants 
are advised to distinctly set forth what they claim as new, 
and that this would be best done in a separate paragraph 
at the end of the description, and in a form suggested in 
the circular. The oath recited that the applicant verily 
believed himself to be the first and original inventor, 
and tliat lie was a citizen of the United States. 



THE LAW OF 1798. 27 

By an act approved April 17, 1800, the right to apply 
for a patent for an invention of a deceased inventor was 
extended to his legal representative; and by the same act, 
aliens, who at the time of application had resided two 
years in the United States, were permitted to apply, pro- 
vided they should make oath before the patent issued that 
their invention had not, to the best of their knowledge or 
belief, been known or used either in this or any foreign 
country, and by the act of July 13, 1832, the right as to 
aliens was further enlarged to include resident aliens who 
had declared their intention to become citizens. In these 
cases the oath was changed in so far as to conform to the 
facts necessary to be recited in each particular case. 

The drawing was usually described in the specification, 
and references made thereto throughout the description. 
Whenever this was done, two copies of the drawings had 
to be furnished, one of which was attached to the patent 
and the other retained in the Patent Office. If there was 
only one copy of a drawing furnished, it was retained in 
the office and the patent issued without any drawing 
annexed to it. Those applicants who desired to have 
their patents issued without delay furnished two com- 
plete sets of application papers; one copy of the specifica- 
tion being on heavy paper or parchment, suitable to be 
attached to the patent. No provision for a caveat was 
made in the law, but it was the practice of the office to 
preserve in confidence such descriptions of inventions as 
were forwarded for the purpose, and to inform the in- 
ventor should a similar application be filed. He then 
could present his petition and be put into interference with 
the conflicting applicant. 



1 



28 UNITED STATES PATENT SYSTEM. 

By a resolution of Congress in 1805 the Secretary of 
State was required to report to it in January, annually, 
a list of all patents granted the preceding year, and the 
names and residences of the patentees. 

In July, 1800, the Department of State removed from 
Philadelphia to Washington. The records, etc., of the 
Department were landed on Lears Wharf, at the foot of 
G street. There was no building immediately ready to 
receive them, but in August the Department found a 
home in what were locally knovi^n as the ^^ Seven Build- 
ings," at Pennsylvania avenue and Twenty-first street. 
These buildings are still standing. 
* In May, 1802, President Jefferson appointed William 

/ Thornton as a clerk, at $1,400 per year, to have charge 
of the issuing of patents. He was of English parentage 
and was born in the Island of Tortola. He was gradu- 
ated in medicine in Edinburgh ; traveled extensively in 
Europe, and, just after his coming of age, came to reside 
in Philadelphia. Here he made the acquaintance of 
Washington, who, under the act to establish the seat of 
the Government, appointed him to the Board of Com- 
missioners in the City of Washington. This board fin- 
ished its work and was abolished May 1, 1802. Thornton 
was well educated, and his abilities were of the first order. 
It was at his suggestion that the first agricultural fair in 
this country was held, in Washington, in 1804. There 
is told of him the following anecdote illustrative of his 
bravery and decision of character: At the capture of 
Washington City in 1814 by the British, an officer had 
ordered a squad of soldiers to train a cannon on the 



THE LAW OF 1793. 29 

building in which was the Patent Office. At that mo- 
ment Thornton rode up, rapidly dismounted, and threw 
himself before the gun. With flashing eyes, he demanded, 
" Are you Englishmen, or only Goths and Vandals ? This 
is the Patent Office, the depository of the inventive genius 
of America, in which the whole civilized world is con- 
cerned. Would you destroy it? If so, fire away and let. 
the charge pass through my body. '' The officer bowed 
his head with shame and ordered the soldiers away. In 
1821 Thornton assumed the title of "Superintendent," 
and he is so registered in the Government Blue Book, but 
it was not until 1830 that the law recognized the title 
by specifically mentioning the office in making an appro- 
priation to pay salaries in the Department of State. 

In a report made by a committee in 1823, appointed 
by the House of Representatives to examine the state 
and condition of the Office, Congress was recommended 
to provide for " an artist '^ to repair and have charge 
of the models. A few years later provision was 
made in an appropriation act for a machinist. 

In 1810 Congress authorized " the purchaseof a building 
for the accommodation of the general post-office, and of 
the office of the keeper of the patents. " The building pur- 
chased was known as Blodgett's Hotel, and stood on the 
site now occupied by the south front of the General Post- 
Office Department. Into the east end of this building 
Thornton moved the records, models, etc., of the office. 

During many years of his superintendency he freely ex- 
ercised much discretionary power in the issuing of patents, 
and ordinarily when a mistake occurred in issuing a 



30 UNITED STATES PATENT SYSTEM. 

patent, whether by the patentee or the office, he would, 
on request, within a reasonable time after its issue, make 
out a new patent without a new fee for the same inven- 
tion for the unexpired term of the original patent. The 
legality of his acts in this matter was confirmed from time 
to time in several opinions of the Attorney-General, but 
not tested in the courts until the case of Grant v. Ray- 
mond (Supreme Court U. S., 1832), in which case it was 
upheld. In a communication to the Secretary of State, 
under date of January 6, 1818, Thornton defined the 
equities and limitations of a reissue as concisely and lumi- 
nously as has ever been done b)" any court or text w^riter. 
About 1823-4, the Attorney-General was of opinion that 
a new patent made out on account of a faulty specifica- 
tion, except for clerical errors on the part of the office, 
must be charged a new fee. Out of this practice of 
Thornton's grew the act of July 3, 1832, providing for the 
reissue of a defective patent. 

This act also required the Secretary of State to report 
to Congress in January, annually, and to publish in two of 
the newspapers printed in Washington City a list of all 
patents which shall have expired within the year imme- 
diately preceding, with the names of the patentees. It 
further enacted that application to Congress to prolong or 
renew the term of a patent should be made before its 
expiration, and should be published at least once a month 
for three months before its presentation, in two newspapers 
in Washington City, and in one of the newspapers in which 
the laws of the United States should be published in the 
State in which the patentee should reside; that the peti- 



THE LAW OF 1793. 



31 



tion should set forth particularly the grounds of the appli- 
cation and be verified by oath, and should be accompanied 
by a statement of the ascertained value of the invention 
and of the receipts and expenditures of the patentee, so 
as to exhibit the profit or loss arising therefrom. Prior 
to this statute the only mode of prolonging the term of a 
patent beyond the original grant was by means of private 
acts of Congress upon individual applications. 




U S Post \ 3ir£A/r Orr/c£ Bo/id/ng /'/i/OR ro th£ F/re of /636. 

On the death of Thornton, in 1828, Thomas P. Jones 
succeeded to the superintendency, and Jolm D. Craig, 
shortly after, followed him. Craig was the first to make 
an orderly and systematic classification and arrange- 



\ 



\ 



32 UNITED STATES PATENT SYSTEM. 

ment of the models and drawings, corresponding to the 
nature of the subject to which they belonged. The 
model room was on the second floor and contained four- 
teen classifications of models. He was succeeded in 
1834 by B. F. Pickett, who remained only a short while. 
In 1835 Henry L. Ellsworth^ of Connecticut, became 
Superintendent. The organization of the oftice then 
consisted of the Superintendent, at $1,500 a year; two 
clerks, at $1,000 each, and one at $800; a machinist at 
$700 ; and a messenger at $400. 

In 1793 ten patents were issued; and the receipts of the 
Office were $660, and in 1800, the year it was removed 
to Washington, $1,230. The number of patents issued 
in 1801, the first whole year the office was in Washing- 
ton, was forty-four. From 1793 to 1802 the money re- 
ceived by the Office was covered into the Treasury as 
clerk-hire for the Department of State ; consequently it 
does not appear that any paj^ment for salaries of Superin- 
tendent, clerk, and messenger were made out of the Office 
receipts during these years; but in 1803 the revenues 
were kept separately in the Treasurj^, and the receipts 
were $2,910, and the expenditures on account of salaries 
paid by the Office were $1,750. The records of the pay- 
ments on account of contingent expenses from 1793 to 
1813 were burned by the British in 1814. In that year 
the receipts were $6,090 ; salaries, $2,150 ; and contingent 
expenses, $403.01. In 1835 the number of patents issued 
was seven hundred and eighty-four, and the salaries paid 
$5,400. The whole number of patents granted from 
February 21, 1793, to July 8, 1836, was 9,957. 



THE LAW OF 1836. 33 

The Llw op 1836. 

On December 31, ISSS^ Hon. John Haggles, Senator 
from Maine, moved that the Senate appoint a committee 
to take into consideration the condition of the Patent 
Office and the laws relating to the issuing of patents. 
The committee was appointed, and on April 28, 1836, 
made a report, and at the same time submitted a bill for 
the reorganization of the Office. The report substan- 
tially said, among other things, that the Department of 
State had been going on under the law of 1793, issuing 
patents on every application without any examination into 
the merits of the invention, and that the evils necessarily 
resulting from such a practice must daily increase till 
Congress put a stop to them. Some of the specified evils 
were as follows : 1. A large number of the patents granted 
are worthless and void, as conflicting with and infring- 
ing one another, or based upon matters not subject to 
patent privileges ; this state of things arising either from 
a want of due attention to the specification of claim or 
from ignorance on the part of the patentees as to the state 
of the arts in this and foreign countries. 2. The country 
is flooded with patent monopolies, embarrassing to bona 
fide patentees, whose rights are thus invaded on all sides ; 
and not less embarrassing to the community generally, in 
the use of even the commonest and oldest improvements 
in the arts and manufactures. 3. Out of this interfer- 
ence of patents a great number of lawsuits arise, oner- 
ous to the courts, ruinous to the parties, and injurious to 
society, 4. The law opens the door to frauds, which 



^ 



34 UNITED STATES PATENT SYSTEM. 

have already become extensive and serious. It is rep- 
resented that it is not uncommon for persons to copy 
patented machines in the model room ; and, having made 
some immaterial alterations, to apply in the next room 
for patents. There being no power to refuse them, pat- 
ents are of course issued. Thus prepared, these patentees 
go forth on a retailing expedition, selling out their patent 
rights for States, counties, and townships, to those who 
find, when it is too late, that they have purchased what 
the vendors had no right to sell or use. This speculation 
in patent rights has become a regular business. Further, 
the first inventor sees his invention pirated from him, 
or else he must, to protect his rights, become involved 
in numerous and expensive lawsuits in distant and 
various sections of the country. 

After thus forcibly pointing out the evils of the exist- 
ing law, the report stated that to prevent these evils in 
the future was the first and desirable object of an alter- 
ation of the law, and that the obvious, if not the only, 
means of eff'ecting it was the issuing of patents for new 
inventions only. With this report before them, Congress 
took up and passed the bill which accompanied it, and 
the bill became a law, July 4, 1836. This law^ required 
an examination to be made of the merits of the inven- 
tion, and in this respect w^as a distinct return to the 
American system inaugurated by the act of 1790. Its 
wisdom has never been successfully questioned, and it 
has found its justification in the industrial progress of 
the greatest nation in the world. The law established 
the Patent Office as a bureau under the Department of 



THE LAW OF 1836. 35 

State, and put it in charge of a chief officer to be called 
the Commissioner of Patents, at a salary of $3,000 per 
annum, his duty being, under the direction of the Secre- 
tary of State, to superintend the issuing of patents. The 
law further provided for a chief clerk, " an examining 
clerk,'' at $1,500 ; two other clerks, one of them to be a 
competent draughtsman; one other clerk; a machinist, 
and a messenger. It provided, also, a seal for the office, 
and required that the patent should issue under that seal, 
and be signed by the Secretarj^ of State, and counter-^ 
signed by the Commissioner ; that every patent should 
contain a title of the invention, correctly indicating its 
nature and design, referring to the specification for the 
particulars thereof, a copy of the specification to be 
annexed to the patent. 

Section six of the act provided, substantially, that any 
person having invented any new and useful art, machine, 
manufacture, or composition of matter, or any new and 
useful improvement thereon, not known or used by oth- 
ers before his invention thereof, and not at the time of 
his application for a patent in public use or on sale with 
his consent, and desiring to obtain an exclusive property 
therein, might make written application to the Commis- 
sioner, expressing such a desire, and the Commissioner 
might then grant the patent; but that before the inventor 
should receive the patent he should deliver a written 
description of his invention, and " particularly point out 
and specify the part, improvement, or combination which 
he claims as his own invention." The applicant was also 
required to make oath that " he does verily believe he is 



36 UNITED STATES PATENT SYSTEM. 

the original and first inventor of the invention for which 
he solicits a patent ; that he does not know or believe 
that the same was ever before known or used/' and of 
what country he was a citizen. 

Under this act, also, the specification and drawing had 
to be signed by the inventor and attested by two wit- 
nesses, and a model was required. The fees were fixed 
at $30 for citizens and aliens resident in the United 
States for one year next preceding the application, 
$500 for British subjects, and $300 for all other persons ; 
further, all the moneys received were to constitute a fund 
for the payment of salaries and expenses of the Office, to 
be called the Patent Fund. On the filing of an applica- 
tion, the Commissioner was to cause an examination to 
be made of the alleged new invention, and if it appeared 
therefrom that the applicant was the first and original 
inventor, and the Commissioner deemed his invention 
sufficiently useful and important, it was his duty to issue 
a patent therefor. And if, on the other hand, it appeared 
that the applicant was not the first and original inventor, 
the Commissioner was required to notify him of the 
fact, giving him such information and references as 
might be useful in judging of the propriety of renewing 
his application or of altering his specification. In every 
such case, if the applicant elected to withdraw his appli- 
cation and relinquished his claim to the model, he was 
to receive back $20 of the original fee ; but if he per- 
sisted in his application, with or without altering his 
specification, he was required to make the oath anew, in 
the manner required on first filing his application. It 



THE LAW OF 1836. 37 

was the practice of the Office up to 1863 to return the 
papers to the applicant for amendment ; but in that year 
this practice was stopped and the applicant in order to 
amend intelligently had either to retain copies of the 
papers or have the Office make them. From the refusal 
of the Commissioner to fssue a patent the applicant could 
appeal to a board of three examiners appointed for that 
purpose by the Secretary of State on each occasion when 
appeal was taken; and the Commissioner was governed 
by their decision in the further action in the case. He 
was also required to decide interferences, and an appeal 
was allowed from his decision therein to a similarly ap- 
pointed board. The law further made provision for the 
filing of a caveat and for notice to the caveator of an 
interfering application filed within one year after the 
caveat. It re-enacted the law as to reissues, and allowed 
the original patentee to have the specification of any 
improvement of the original invention invented by him 
subsequent to the date of his patent annexed to the orig- 
inal specification. The act provided, also, that whenever 
an application was refused on an adverse decision of a 
board of examiners, on the ground that the patent ap- 
plied for would interfere with an unexpired patent pre- [ 
viously granted, the applicant might have remedj^ by 
bill in equity in any court having cognizance thereof, 
and that its adjudication, if favorable, should authorize 
the Commisstoner to issue such patent ; if unfavorable, 
appeal lay to the Supreme Court of the United States, 
provided the amount involved brought the case within 
the provision of the Judiciary Act of 1789. By a subse- 



X 



38 UNITED STATES PATENT SYSTEM. 

quent act, approved February 18, 1861, the appeal 
might lie without regard to the amount in controversy. 
Application for the extension of the term of a patent had 
to be made to the Commissioner; and the Secretary of 
State, the Solicitor of the Treasury, and the Commis- 
sioner were constituted a board to hear and decide the 
application, and if their decision was favorable the Com- 
missioner renewed the patent for a tex^m of seven years 
from and after the expiration of the first term. 

The law further enacted that there should be provided 
a scientific library for the Office, and appropriated $1,500 
for the purpose, to be paid out of the patent fund. There 
was a library of some three hundred volumes in the Of- 
fice prior to this provision, and the $1,500 was designed to 
be used in the purchase of new books for the existing 
library ; but before any of the money was used the library 
was burned in the fire of December 15, 1836. The law also 
enacted that the models and specimens of compositions 
and of fabrics and other manufactures and works of art, 
patented and unpatented, which had been or should 
thereafter be deposited in the Office, should be classified 
and arranged in such rooms or galleries as might be pro- 
vided for the purpose. 

The first patent issued under this law was to Hon. John 
Ruggles " For locomotive engines on inclined planes," July 
13, 1836. 

Henry L. Ellsworth was appointed as the first Commis- 
sioner, and Charles M. Keller examining clerk, and there- 
upon the present system of examination began. Mr. Kell- 
er's father was the first machinist the Office ever had, and 



THE LAW OF 1836. 39 

at his death, in 1831, the son became his successor. Mr. 
Keller's judgment and experience in the Office contrib- 
uted largely to the formulation of the law. Indeed, it has 
been stated that he originated the idea of an amendment 
of the act of 1793, and on the lines of the law of 1836. 

On June 15, 1836, Mr. Ruggles, as one of a committee 
appointed on his motion for the purpose, reported a 
bill " providing for the construction of a building for the 
accommodation of the Patent Office.'' On June 28, the 
bill then being on its last reading, a motion was made to 
recommit with instructions to report a bill providing for 
the purchase of the "old brick Capitol," fronting Capitol 
Square. The motion was lost, and the bill as read passed:^^ 
the Senate, appropriating $108,000, out of the " patent 
fund " for the erection of a suitable building of brick and 
wood. A House amendment changed these materials to 
cut-stone facing for the exterior walls, and also pro- 
vided for fireproofing the structure within. The bill as / 
amended became a law July 4, 1836. Late in that month T 
the erection of the building began. It was the present 
south front of the Patent Office, excluding the south 
ends of the east and west wings. The building was 270 
feet long and 69 feet wide. The basement (what is now 
the first or ground floor), was to be used for storage, 
fuel, furnaces, etc., the first or portico floor for office 
rooms, and the second floor was to be one large hall, with 
galleries on either side, and to have a vaulted roof. This 
hall was designed to be used as a national gallery of the 
industrial arts and manufactures, and for the exhibition 
of models of patented and unpatented inventions. The 



40 UNITED STATES PATENT SYSTEM. 

body of the building is of Virginia sandstone and was 
afterward painted white. 

On December 15, 1836, a fire destroyed the building 
in which the Patent Office was, and all the models and 
records and the library, with the exception of one book, 
volume VI of the Repertory of Arts and Manufactures 
(now in the Scientific Library of the Office), which an 
employ^ of the office happened to have taken to his 
home before the fire. Among the records destroyed 
was a folio containing drawings of Fulton's first steam- 
boat, made by his own hands. 

On December 9th, Mr. Ruggles asked that a committee 
be appointed " to report the extent of the loss sustained by 
the burning of the Patent Office." This committee made 
a report, and also at the same time submitted a bill which 
became the act of March 3, 1837, and in which every 
provision was made to restore the specifications, draw- 
ings, and models, by obtaining duplicates of them from 
the persons in whose possession the originals were. An 
appropriation of $100,000 was made for this purpose. 
. The whole number of models destroyed was about seven 
thousand, and the records covered about ten thousand 
inventions. It was not until 1849 that the work of res- 
toration was discontinued, and out of the amount allowed 
for the purpose $88,237.32 was expended. The act 
further provided that whenever a patent should be re- 
turned for correction and reissue under the act of 1836, 
and the patentee desired it, several patents might be 
issued for distinct and separate parts of the thing pat- 
ented, on the payment of $30 for each additional patent 



THE LAW OF 1836. 41 

SO to be issued. It also enacted that any patent there- 
after to be issued might be granted to the assignee of the 
inventor, the assignment thereof being first entered of 
record, and the application therefor being made and the 
specification sworn to by the inventor. Prior to the pas- 
sage of this act a patent could issue to the inventor only ; 
but after it had issued it was assignable so as to give the 
assignee legal rights. It required that in all cases there- 
after filed, duplicate drawings should be furnished, one 
to be deposited in the Office and the other annexed to the 
patent and considered a part of the specification. It 
was the practice of the Patent Office under the act to 
accept a single drawing as sufficient for the purpose of an 
examination of the application, but an additional one 
was required before the patent issued, in order that one 
might accompany it, while the other remained in the 
Office. In this law provision was first made for dis- 
claiming the parts of a thing or process of which the 
patentee was not the first inventor. It also further 
enacted that when application should be made for any 
addition to a patent, or whenever a patent should be re- 
turned for correction and reissue, the claim in every 
such application or patent should be re-examined. The 
Commissioner was also required by the law of 1837 to re- 
port to Congress in January, annually, the expenditures of 
the Office, together with a list of the names of patentees, 
etc. The law of 1836 contained no such requirement, 
probably through inadvertence. 

On March 3, 1839, an additional act was passed abol- 
ishing the board of examiners provided for by the act of 



^ ( 



42 UNITED STATES PATENT SYSTEM. 

1836, and enacting instead that the appeal might be 
taken from the Commissioner to the Chief Justice of the 
District Court of the United States for the District of 
Columbia, and provision was made for filing a bill in 
equity by an applicant in any court having cognizance 
thereof, in all cases not only where patents were refused 
by the Commissioner, but where refused by the Chief Jus- 
tice of the District of Columbia. After the abolition of 
the " board " each examiner decided the interfering appli- 
cations that arose in his division and reported his decis- 
ion to the Commissioner. On July 1, 1860, Commissioner 
Thomas changed this practice by deputing one examiner 
to determine all interferences. The act further provided 
for an appropriation of one thousand dollars out of the 
patent fund to be expended by the Commissioner in the 
collection of agricultural statistics, distribution of seeds, 
etc., and from this date until the establishment of the 
Agricultural Bureau the Commissioner of Patents had 
charge of this work, which was done in the Patent 
Office. 

During the erection of the Patent Office building the 
Commissioner found temporary quarters in the City Hall. 
In the spring of 1840 the building was completed and the 
Office moved into its own home, upon the building of 
which the sum of $422,011.65 was expended. The Com- 
missioner in his annual report for 1840 said : " The pat- 
ented models are classified and exhibited in suitable 
glass cases. The National Gallery is ready for the exhi- 
bition of models and specimens. I am happy to say that 
the mechanics and manufacturers are improving the op- 



THE LAW OF 1836. 43 

portunity to present the choicest contributions, and from 
the encouragement given, no doubt is entertained that 
the hall, considered by some so spacious, will, in a short 
time, be entirely filled, presenting a display of national 
skill and ingenuity not surpassed by any exhibition in 
the world." 

The number of applications during that year was 765 ; 
number of patents 475, and of caveats 228. The receipts 
were $38,056.51, arid expenditures, on account of salaries, 
$16,486.37, and contingent expenses, including agricul- 
tural statistics and seeds, $23,982.45. The balance in the 
Treasury to the credit of the " patent fund " was $75,000. 

On August 29, 1842, an additional act was passed, pro- 
viding for the issuing of a patent for " any new and orig- 
inal design,'' for the term of seven years, and for the tak- 
ing of the oath to the specification in foreign countries. 

An act of May 27, 1848, abolished the board for the 
extension of patents, composed of the Secretary of State, 
the Commissioner of Patents, and the Solicitor of the 
Treasury, and vested their powers in the Commissioner 
alone. When an application for the extension of a 
patent was made, the Commissioner was required to 
refer the case to the principal examiner having charge of 
the class of inventions to which the case belonged, for a 
report, and upon his report the Commissioner granted or 
refused the extension. 

By the act of March 3, 1849, establishing the Interior 
Department, the Patent Office was attached thereto. This 
same act appropriated $50,000 out of the patent fund to 
begin the east or Seventh street wing. It was completed 



44 UNITED STATES PATENT SYSTEM. 

/ 

r 

/in 1852, and cost $600,000, $250,000 of which was taken 
^ fronri the revenues of the Office. As soon as the wing was 
ready for occupancy, the Interior Department took pos- 
session. 

By an act approved August 31, 1852, a librarian, at 
$1200, was provided for the Office. This act also appro- 
priated $150,000 to begin the erection of the west or Ninth 
street wing. Plans for the entire building as it now 
stands were prepared in this year. The west wing was 
completed and occupied in 1856, and cost $750,000. In 
the same year work was begun upon the north or G street 
wing. 

Previous to December, 1857, the Commissioner heard 
appeals in person from the adverse decisions of the exam- 
iners ; but this practice becoming a physical impossibility, 
owing to the increase in the business of the Office, Com- 
missioner Holt at first deputed temporary boards of ex- 
aminers to decide appeals, and at length created a perma- 
rnent board of three examiners, whose duty it was to decide 
. on appeal all rejected cases and submit their decisions to 
him for his approval. By an act passed March 2, 1861, 
a board of three examiners -in -chief was established, 
whose duties were, principally, to decide appeals from 
the adverse decisions of the examiners. No appeal fee 
^ was charged, but under an act passed in June, 1866, a fee 
of ten dollars was necessary. An appeal from this board 
was allowed to the Commissioner in person on pay- 
/ftient of twenty dollars. An appeal could not be taken 
/ from an examiner, except in interference cases, until after 
I the ap))lication had V)een twice rejected, and the second 



THE LAW OF 1836. 45 

examination was not to be given until the applicant re- 
newed the oath. The act of March 2, 1861, also provided 
that no money paid as a fee on any application for a 
patent, after the passage of the act, should be withdrawn or 
refunded ; nor should the fee paid on the filing of a caveat 
be considered as a part of the fee on filing a subsequent 
application for the same invention. The right to annex 
to a patent the specification of additional improvements 
was also repealed by this act. The right to withdraw 
the fee was given to American applicants by the act of 
1836, and was extended to foreigners by the act of 1837. 
The right of iiaving a caveat fee applied as part of the 
sum to be paid upon a subsequent application was given 
by the act of 1836. By act of 1861, also, all the Office 
fees were revised and the present rates established. The 
term of seven years for design patents was changed, by 
providing that after the date of the act a patent for a design 
might be granted for the term of three and a half years, 
or seven years, or fourteen years, as the applicant might 
elect, and fixing the fees at ten, fifteen, and thirty dollars, 
respectively. It was also enacted that applications must 
be prepared for examination within two years after the 
filing of the petition, and in default thereof they were to be 
regarded as abandoned, unless it were shown to the satis- 
faction of the Commissioner that such delay was unavoid- 
able. Previous to this an applicant might suit his own 
pleasure and interest as to the time when he would com- 
plete his application for examination. By the same act 
the term of all patents was fixed at seventeen years, all 
extensions of patents were prohibited, and the Commis- 



46 UNITED STATES PATENT SYSTEM. 

sioner was authorized to print ten copies of the specifica- 
tion and drawing of all patents thereafter issued. Prior 
to this the copies were made by tracing or drawing. 

By section three of an act, March 3, 1863, it was 
enacted, " That every patent shall be dated of a day not 
later than six months after the time at w^hich it was 
passed and allowed and notice thereof sent to the appli- 
cant. And if the final fee be not paid within the six 
months, the patent shall be withheld and the invention 
become public property as against the applicant." In 
this act, also, the requirement as to a renewal of the oath, 
when on a first rejection the applicant shall persist in his 
claim, under the act of 1836, was repealed. 

By an act of March, 1865, it was provided that any 
person having an interest in an invention for which a 
patent was ordered to issue upon payment of the final 
fee, as provided in section three of the act of 1863, but 
who had failed to make payment as provided in that act, 
should have the right to make an application for a patent 
for his invention the same as in the case of an original 
application, provided such application be made within 
two j^ears after the date of the allowance of the original 
application. 

In 1867 the north or G street wing of the present Patent 
Office building was finished at a cost of $575,000. The 
entire building cost $2,347,011.65. It speaks for itself! 
It is one of the handsomest, most massive public struct- 
ures in the world, and would be a credit to any age or 
people. Were it wholly given over to the use of the 
Patent Office, for which it was originally solely intended, 



THE LAW OF 1836. 



47 



and to which it, by right, ought to be given, the inventors 
of the whole world might well point with pride to the 
complete justice of the American people. 




NEW PATENT OFFICE BUILDING. 



The appropriations act of July 20, 1868, abolished the 
'^patent fund," and provided that all moneys received by 
the Office should be paid into the Treasury. Thereafter 
appropriations were made for the Office in the same way 
as for other Bureaus. From 1793 to the date of this act 
the moneys earned by the Office were kept in the Treas- 
ury as a separate fund, known as the '^ patent fund," and 
the Commissioner drew against it for the expenses of the 
Office. There was on January 1, 1868, a balance in the 
Treasury to the credit of the patent fund of $271,444.48, 
and all of this was swept into the general coffers of the 
Government, by the act of July 20, 1868. 

On May 1, 1869, Samuel S. Fisher, of Ohio, became 
Commissioner. He was the first to publish his decisions 



48 UNITED STATES PATENT SYSTEM. 

and to have the copies of the specifications and drawings 
made by photo-lithography. He also instituted the prac- 
tice of requiring a competitive examination for entrance 
to and promotions in the examining force of the Office. 
In this year, by conventions between the United States 
and France and Russia, provision was made for the 
deposit in the Patent Office of trade-marks by citizens of 
any of these countries; but no fee was provided for the 
filing of the papers. 
/ In 1843, and annually thereafter, a report was pub- 
/ lished, containing an alphabetical index of names of in- 
\ ventor^, a list of expired patents, and the claims of the 
^ patents granted during the year, and in 1853 and after- 
ward small engraved copies of a portion of the drawings 
w^ere added to the reports to explain the claims. In 1843 
the report was a' small pamphlet, but by 1867 it had 
swelled to four large volumes. They were known as the 
^Patent Office Reports. 

In 1870 there were 19,171 applications filed, and 13,333 
patents issued. The Office receipts were $669,456.76, and 
expenditures on account of salaries $404,143.53; and con- 
tingent expenses $153,003.59. The balance in the Treas- 
ury, showing the profits of the Office, was $643,355.21. 
From July 8, 1836, to January 1, 1870, 98,460 patents 
were issued, and the examining force increased from 
one examiner to three examiners- in -chief, twenty-two 
principal examiners, twenty first assistant examiners, 
and the same number of second assistants. 



list of commissioners under act of 1836. 49 

List op Commissioners Under the Act of 1836. 

Henry L. Ellsworth, July 4, 1836. 
Edmund Burke, May 4, 1845. 
Thomas Ewbank, May 9, 1849. 
Silas H. Hodges, November 8, 1852. 
Charles Mason, May 16, 1853. 
Joseph Holt, September 10, 1857. 
William D. Bishop, May 2?', 1859. 
Philip F. Thomas, February 16, 1860. 
D. P. Holloway, March 28, 1861. 
J. C. Theaker, August 17, 1865. 
Elisha Foote, July 29, 1868. 
Samuel S. Fisher, April 26, 1869. 



0^ 



CHAPTER VI 
The Laav of 1870. 

On July 8, 1870, an act was passed, revising, consol- 
V idating, and amending the statutes relating to patents 

and repealing the twenty-five acts and parts of acts, in- 
cluding such portions of the appropriations bills as were 
applicable to the Patent Office, that had been enacted 
since the passage of the law of 1836. 

The law of 1870 added to the force of the Office an 
Assistant Commissioner; and an examiner of interfer- 
ences, whose office was to determine the question of 
priority of invention in interference cases. It gave the 
Commissioner authority, subject to the approval of the 
Secretary of the Interior, to establish regulations for the 
conduct of proceedings in the Office. As early as 1828 
the Office began to print for free distribution circulars 
containing information as to what the law relating to 
the issuing of patents was, and how to proceed to obtain 
a patent. These circulars were revised and enlarged 
from time to time, as various changes and additions 
were made in the law affecting the practice before the 
Office. The information contained in them was divided 
into numbered sections and conveniently arranged under 
suitable headings. At length these circulars took the 
form of a pamphlet, which began to be called the Rules of 
Practice, but prior to the act of 1870 the rules did not have 
the force of law. The statute also authorized the Com- 
missioner to print copies of the claims of the current 



THE LAW OF 1870. 51 ^ 

issues of patents, and of such laws, decisions, and rules as 
were necessary for the information of the public. Under 
this provision the Office began to publish weekly a list 
giving the numbers, titles, and claims of the patents 
issued during the week immediately preceding, together 
with the names and residences of the patentees. In the 
Commissioner's Report for 1870, he recommended that 
the scope of the publication be enlarged so as to consti- \ 
tute an official gazette of the Office. On January 3, / 
1872, the weekly list was first published under the name of 
The Official Gazette of the United States Patent Office. 
It then, however, embraced only the matters specified in 
the law of 1870; but in July, 1872, portions of the 
drawings were introduced to illustrate the claims in 
the patented cases. This enlargement was brought 
about in the following way. By a joint resolution 
of Congress, in January, 1871, the publication of the 
illustrated annual reports (commonly known as Patent 
Office Reports) was ordered to be discontinued and 
in lieu thereof the Commissioner was directed to 
have printed for free distribution one hundred and fifty 
copies of the complete specifications and drawings of 
each patent issued after July 1, 1869 ; but in May, 1872, 
Congress ordered this publication to be stopped, and at 
the same time made provision for illustrating the claims 
in the Official Gazette in the manner as above stated. 
The Official Gazette now has a circulation of about 
7,000 copies, of which number 2,953 are subscribed for 
at five dollars per annum, and 3,576 are distributed free 
to public libraries, members of Congress, and public 



52 THE UNITED STATES PATENT SYSTEM. 

officials. The expense of its publication is about $55,000 
a year. 

The law of 1870 enacted that the thing or art for which 
a patent was sought must, in order to be patentable, 
be a new and useful invention, not known or used by- 
others in this country, and not patented or described in 
any printed publication in this or any foreign country 
before the applicant's invention thereof, and not in pub- 
lic use or on sale for more than two years prior to the 
application, and not proved to have been abandoned. 
It also added a provision that upon the failure of an 
applicant to prosecute his application within two years 
after any action therein, the application would be re- 
garded as abandoned, unless it was shown to the satis- 
faction of the Commissioner that the failure to prosecute 
was unavoidable. Previous to this provision, after an 
action on the application by the Office, it might lie until 
it suited the applicant's leisure or interest to amend or 
request a re-examination. In some instances applica- 
tions were not called up for ten and twelve years. 

A model was not to be furnished unless the Com- 
missioner required it. This change was made prin- 
cipally because there was not sufficient room in the model 
halls to classify and arrange the models, and because of 
the further fact that there was a preponderating opinion 
that they were unnecessary. There are now some 154,000 
models in the model halls, and they are being added to 
at the rate of about 550 a year. 

Provision was also made for the protection of Trade- 
Marks by allowing them to be registered in the Office. 



THE LAW OF 1870. 53 

By an act, August 1, 1874, the Commissioner was also 
charged with the supervision of the entry or registry of 
Labels. ^ 

In February, 1872, Mr. Leggett, who was Commissioner 
at that time, in a communication to the Secretary of the 
Interior, invited his " attention to thQ propriety of sever- 
ing the Office from the Interior Department and its estab- 
lishment as a department by itself.'^ The Secretary trans- 
mitted the communication to the President, with the state- 
ment that the matter was " worthy of consideration.'' On 
March 13, 1872, the President sent the letters of the Secre- 
tary and of the Commissioner to Congress, with the message 
that he recommended " the careful consideration of Con- 
gress to the subject." The message was read, referred to 
the Committee on Patents, and ordered to be printed. It 
appears that nothing further was done in the matter until 
some five years later, when a bill was introduced in Con- 
gress providing for the organization of the Patent Office 
into an independent department and for giving it ex- 
clusive control of the building in which it was, and in 
1884 the same bill was introduced in the Senate. Nothing 
came of the measure. 

Hundreds and hundreds of incidents could be given of 
other and different measures proposed to Congress relating 
to the Patent Office and the patent system, and this one is 
only singled out because the historian of an hundred 
years hence will write of this as being the first attempt 
in which it was sought to establish the Department of 
Sciences and Arts. The patent fund will then have 
erected in the capital city a vast and magnificent tem- 



54 THE UNITED STATES PATENT SYSTEM. 

pie in which will be permanently displayed the treasure 
stores of the Sciences and Arts. The imagination of the 
reader can divine what the scope of such a department 
will be. 

In December, 1873, the law of 1870 was repealed and 
re-enacted in the Revised Statutes of the United States. 

On September 24, 1877, the roof and model rooms 
and contents in the west and north wings were destroyed 
by fire, and much damage done to the building. About 
87,000 models and 600,000 photo-lithographic copies of 
drawings were ruined by fire and water. 

By an act approved February 18, 1888, one of the As- 
sistant Secretaries of the Interior, to be designated by 
the Secretary of the Interior, is authorized to sign pat- 
ents. 

In 1871 there were 19,472 applications for patents, and 
13,033 patents were issued. The receipts of the office were 
$678,716.46 and expenditures on account of salaries 
$422,316.02; contingent expenses were $14,082.32, and 
there was a balance in the Treasury to the credit of the 
patent fund of $759,180.03. 

In 1890 the number of applications was 41,048, and 
the number of patents issued 26,208, an increase in nine- 
teen years of 21,576 applications, and 13,175 patents. 
The receipts of the Office were $1,340,372.66, and the ex- 
penditures on account of salaries $657,505.15, and con- 
tingent expenses $158,867.83. Balance in the Treasury, 
January 1, 1891, $3,872,745.24. 

From January 1, 1871, to January 1, 1891, -there were 
333,370 patents issued, or an annual average of 16,668. 
For the period beginning with January 1, 1868 (the 



LIST OF COMMISSIONERS. 



55 



date is just prior to the abolition of the patent fund), 
and ending January 1, 1891, the Office paid into the 
Treasury, over and above all expenses, |3,301,600.76, or 
an annual average of $156,143.52 ; more than enough 
to pay the aggregated salaries of the President and the 
Justices of the Supreme Court for every year during the 
period. 

List of Commissioners. 

M. D. Leggett, January 16, 1871. 

John M. Thatcher, November 4, 1874. 

R. H. Duell, October 1, 1875. 

Ellis Speer, January 30, 1877. , 

H. E. Paine, November 1, 1878. 

E. M. Marble, May 7, 1880. 

Benjamin Butterworth, November 1, 1883. 

M. V. Montgomery, March 23, 1885. 

B. J. Hall, April 12, 1887. 

C. E. Mitchell, April 1, 1889. 




COMMISSIONER MITCHELL. 



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